DAVID KANNAGARA v. CENTRAL FINANCE LTD

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CA
David Kannangara v Central Finance Ltd.
(Amaratunga, J.)
311
DAVID KANNANGARAvCENTRAL FINANCE LTD.COURT OF APPEALAMARATUNGA, J.
A. REV. 1266/02
C. POLONNARUWA13/CLAIMSEPTEMBER 25, 2003
Execution of Decree – Vehicle seized by Fiscal – Claim to vehicle seized byFinance Company to Court – Civil Procedure Code section 241 – Should theclaim be made to the Fiscal? – Should the application be made in the same
case?
HELD;
Section 241 do not prohibit the making of a claim straight to the Courtwhich ordered the seizure of the property.
Per Amaratunga, J.,
'There is nothing in section 241 to prohibit such a course of action anevery procedure not prohibited shall be deemed to be permitted.”
Assigning a number to an application is a matter for Court. What wasnecessary was to bring the claim before Court with Notice to thejudgment Creditor. If at all, it is a technical defect which has not causedany prejudice to the Judgment Creditor.
APPLICATION in Revision from the Order of the District Court ofPolonnaruwa.
W. Dayaratne with Ms. R. Jayawardena for petitioner.
Geoffrey Alagaratnam for the respondent.
Cur. adv. vutt.
October 15, 2004
AMARATUNGA, J.This is an application to revise an order made by the learnedDistrict Judge of Polonnaruwa in an inquiry relating to the claimmade by the respondent in respect of a vehicle seized by the Fiscalin execution of a decree passed by that Court in favour of the
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petitioner in an action filed by the petitioner against one A.D.Wijeratna, who is not a party to this application. The facts which arerelevant to this application are as follows.
The petitioner filed action No. 7428/98 against the saidWijeratna claiming Rs. 500000/= due to him in consequence of amoney transaction he had with the said Wijeratna. He has alsoobtained an interim injunction preventing the said Wijeratna fromdisposing vehicle No. 58/0767 which the said Wijeratna had in hispossession. After ex parte trial against Wijeratna the Court entered. judgment in favour of the present petitioner.
Before Writ of execution was issued, the present respondentfinance company made an application to Court claiming that it wasthe absolute owner of the said vehicle and therefore the saidvehicle should be released to the respondent company. By thattime the fiscal has not seized the vehicle in execution of the decreeentered by Court. The learned Judge having observed that that wasnot the stage in which such application could be made, refused theapplication and remarked that the finance company should makeits application at the proper stage.
Subsequently, the fiscal in execution of the decree entered infavour of the petitioner seized the vehicle and advertised it for saleby public auction. The finance company then made an applicationto Court claiming the vehicle as it was not liable to be sold inexecution of the decree entered in favour of the petitioner.
At the inquiry, a representative gave evidence on behalf of thefinance company. He stated that the finance company was theabsolute owner of the vehicle; it was let to one Samarasinghe ofKurunegala on a hire purchase agreement; the said Samarasinghedefaulted to pay the hire purchase instaments; when the companywanted to repossess the vehicle it was not to be found in thepossession of Samarasinghe; subsequently they learnt that theHingurakgoda Police had detained this vehicle in connection withan alleged criminal offence; thereafter the company learnt that thefiscal had advertised this vehicle for sale by public auction and thatthe judgment creditor (the petitioner) had no right to get this vehicleseized and sold in satisfaction of the decree entered againstWijeratna. He accordingly asked that the vehicle be handed over to
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David Kannangara v Central Finance Ltd.
(Amaratunga, J.)
313
CA
the finance company which was absolute owner of the vehicle. Acopy of the registration certificate of the vehicle was produced inCourt marked B. The company’s representative’s evidence was theonly evidence led at the inquiry. No evidence was led by thepetitioner to show that this judgment debtor Wijeratna had any rightto the vehicle. Thereafter the learned Judge made order holdingthat the finance company was the absolute owner of the vehicleand that it was not liable to be seized and sold in execution of thedecree entered in favour of the petitioner. The judge made order to 50hand over the vehicle to the respondent finance company. Thisrevision application is against that order.
Several points have been urged in support of the revisionapplication. The first point was that since the finance company didnot make any claim to the vehicle before the fiscal who seized itand in the absence of any claim made to the fiscal and his report toCourt regarding such claim, an inquiry under section 241 could nothave been held. The petitioner’s position is that an inquiry undersection 241 of the Civil Procedure Code must necessarily precedeby a claim before the fiscal who shall thereupon report to Court 60about the claim. It is true that in terms of section 241, the fiscal hasto report the claim to the Court and an investigation into the claimis to be held thereafter. This is the usual way of commencing aninvestigation under section 241. However the terms of section 241do not prohibit the making of a claim straight to the Court whichordered the seizing of the property. If a person having a valid claimin respect of a property seized by fiscal was unaware of the seizurebut later learns about the proposed auction of the property, cannotthe claimant make his claim straight to Court by way of a petition,without first making his claim before the fiscal? There is nothing in 70section 241 to prohibit such a course of action and every procedurenot prohibited shall be deemed to be permitted. What is necessaryis to place the claim before Court. Fiscal’s report is one way ofbringing the claim to the notice of Court. But any other method forbringing the claim to the notice of Court is not prohibited. Once theCourt is notified of a claim that a property is not liable to be seizedand sold, the Court has jurisdiction to investigate such claim.
Therefore I hold that the finance company was properly beforeCourt when it made its claim straight to Court by way of petition
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and affidavit and that the Court had jurisdiction to hold aninvestigation into such claim.
The second point raised was that the claim had been made byway of a separate application with a different number and not as anapplication in the same case where the writ has been issued.Assigning a number to an application is a matter for the court. Whatwas necessary was to bring the claim before Court with notice to thejudgment creditor at whose instance the property had been seized.Thus the point raised, if at all, is a technical defect which has notcaused any prejudice to the judgment creditor.
The third point was that the certificate of registration of thevehicle has not been produced to show that the finance companywas the absolute owner of the vehicle. However a copy of theRegistration Certificate had been produced marked ‘B’.
The petitioner has not led any evidence to show that hisjudgment debtor had any kind of legal right to the vehicle and that itwas liable to be seized and sold in satisfaction of the decree enteredin his favour. In the absence of any such material, the learned Judgehad come to a correct finding on the material before him. I do notsee any reason to revise that order. Accordingly the revisionapplication is dismissed with costs in a sum of Rs. 5000/=.
Application dismissed.
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